Union of India, Rep. by the Secretary, Ministry of Railways, New Delhi v. Deepesh K. S/o Divakaran
2019-08-06
ASHOK MENON, V.CHITAMBARESH
body2019
DigiLaw.ai
JUDGMENT : ASHOK MENON, J. 1. Whether the respondent can be disqualified for appointment as Technician Signal Maintainer Grade-II in the Indian Railways, classified as a post under Medical Category B-1 in the Indian Railways Medical Manual (IRMM), for the reason that he had undergone Zyoptix Laser treatment in both eyes, is the question that arises for consideration before us in this Original Petition filed by the Indian Railways challenging the impugned order of the Central Administrative Tribunal, Ernakulam Bench in O.A. No. 61/2011 holding that he cannot be disqualified for employment in Category B-1 for the sole reason of having undergone the said treatment. 2. The facts in brief are thus: The respondent/applicant qualified for appointment as Technician Signal Maintainer Grade-II and was called for medical examination. The Railway Medical Authorities found him unfit for the reason that he had undergone Zyoptix Laser treatment to correct his vision, when he was 25 years old. The applicant challenged this decision before the Tribunal. His contention is that, according to the IRMM, a person who had undergone Radial Keratotomy cannot be considered for appointment to the posts classified as A-1, A-2 and A-3 and B-1 categories in the IRMM. His contention is that he has not undergone Radial Keratotomy, but has undergone Zyoptix Laser treatment of both his eyes, which according to him, is not a bar under the IRMM. 3. Per contra, the Railways would contend that Radial Keratotomy and Zyoptix Laser treatments are both refractive eye surgeries to change the refractive surface of the cornea and having undergone the Zyoptix Laser treatment, the applicant is disqualified for posts coming under categories A-1 to A-3 and B-1. The posts for which the applicant had applied comes under category B-1, which requires good eye sight, considering the safety of public travelling in the Railways. 4. The Tribunal found that B-1 categorisation for employment to the posts for which the applicant had applied requires good eye sight with the intention of safety measure for the employee himself and fellow workers or both, and has nothing to do with public safety, and therefore, allowed the application as stated earlier. 5. The learned Standing Counsel appearing for the petitioners relies on the decision in Dr. M.C. Gupta vs. Dr.
5. The learned Standing Counsel appearing for the petitioners relies on the decision in Dr. M.C. Gupta vs. Dr. Arun Kumar Gupta, (1979) 2 SCC 339 , wherein the Honourable Supreme Court held thus: “7..........When selection is made by the Commission aided and advised by experts having technical experience and high academic qualifications in the specialist field, probing teaching/research experience in technical subjects, the Courts should be slow to interfere with the opinion expressed by experts unless there are allegations of mala fides against them. It would normally be prudent and safe for the Courts to leave the decision of academic matters to experts who are more familiar with the problems they face than the Courts generally can be. Undoubtedly, even such a body if it were to contravene rules and regulations binding upon it in making the selection and recommending the selectees for appointment, the Court in exercise of extraordinary jurisdiction to enforce rule of law, may interfere in a writ petition under Article 226. Even then the Court, while enforcing the rule of law, should give due weight to the opinions expressed by the experts and also show due regard to its recommendations on which the State Government acted......” The learned Counsel would contend that in view of the above judgment, in issues regarding medical fitness, the Courts should be slow in interfering with the opinion expressed by the medical experts, unless there are mala fides alleged against them. In the instant case, there is no allegation of mala fide on the part of the experts, who opined the applicant as medically unfit going strictly by the IRMM, which states that for being selected for a post coming under category B-1, the candidate should have the stipulated eye sight, with or without glasses, and that candidates who have undergone Radial Keratotomy surgery to correct the vision, would be disqualified. 6. There is no dispute that Zyoptix Laser treatment is different from Radial Keratotomy. Only those candidates, who have undergone Radial Keratotomy are disqualified for B-1 category posts. There is no specific regulation or rule in IRMM, which indicates that candidates, who have undergone Zyoptix Laser treatment, too are disqualified. 7. In Dr.
6. There is no dispute that Zyoptix Laser treatment is different from Radial Keratotomy. Only those candidates, who have undergone Radial Keratotomy are disqualified for B-1 category posts. There is no specific regulation or rule in IRMM, which indicates that candidates, who have undergone Zyoptix Laser treatment, too are disqualified. 7. In Dr. M.C. Gupta (supra) what has been considered by the Honourable Supreme Court was the definition of the word "medicine" under Section 2(f) of the Indian Medical Council Act, 1956 for appointment of Specialists in Cardiology and Orthopaedics. In consideration of the facts in that case, the opinion of the technical expert would weigh, because the matter pertains to the appointment to technical posts by the Public Service Commission, aided by experts. Even in Dr. M.C. Gupta (supra), the Honourable Supreme Court has opined that, undoubtedly, even such a body, if it were to contravene rules and regulations binding upon it in making the selection and recommending the selectees for appointment, the Court in exercise of extraordinary jurisdiction to enforce rule of law, may interfere with a writ petition under Article 226. 8. In the instant case, the medical experts, who have examined the applicant, have not opined or concluded that Radial Keratotomy and Zyoptix Laser treatments are both one and the same. In fact, Radial Keratotomy is an old procedure by doing radial cuts in the cornea while, Zyoptix Laser treatment is a new procedure for correcting the refractive error by changing the cornea thickness by Excimer Laser as opined in Ext.P9 certificate issued from Vasan Eye Care, where the treatment was done. The IRMM relied upon by the medical experts to disqualify the applicant is an old one, which has not been updated. In case, the authorities needed to disqualify the persons, who had undergone Zyoptix Laser treatment as well, it should have been included in the Manual so as to exclude them as well. Without such amendment being brought about in the Manual, we have no hesitation to find that the rules pertaining to appointments have been violated. We do not venture to sit on judgment over the medical opinion expressed by the experts. 9.
Without such amendment being brought about in the Manual, we have no hesitation to find that the rules pertaining to appointments have been violated. We do not venture to sit on judgment over the medical opinion expressed by the experts. 9. In S.K.M. Haider vs. Union of India, 2011 KHC 4124, the Honourable Supreme Court had interfered in a case where selection to the post of Ticket Collector in the Indian Railways was challenged, and it was held that the vision test for Ticket Collector was with a purpose, and there seems to be no rational basis in relation to the object set out in Para 510 of IRMM of categorising the post of Ticket Collectors under Class B-2 in Annexure IV and he should have been declared as medically fit in Class C-2. We find no error in the findings of the Tribunal calling for interference. The appeal is therefore not sustainable. 10. In the result, the Original Petition is dismissed. No costs.